108 Mass. 461 | Mass. | 1871
1. The motion to quash this indictment was properly overruled. It is not necessary to allege that the woman operated upon either did or did not die. Commonwealth v. Wood, 11 Gray, 85. Commonwealth v. Hamilton, 15 Gray, 481. The averment that the acts were done “ maliciously and without any lawful justification ” is sufficient, although the word used in the more recent statute is “ unlawfully.” The two expressions are synonymous. Commonwealth v. Sholes, 13 Allen, 554. Commonwealth v. Fogerty, 8 Gray, 489.
2. No exception lies to the refusal to allow separate trials. The reason for the motion, namely, the alleged promise of the public prosecutor to discharge one of the defendants in any event, was a matter to be addressed to the discretion of the court. The granting of separate trials is within the discretion of the court, and is not a matter of right. Commonwealth v. James, 99 Mass. 438.
3. Mrs. Thompson called the counsel of Hale, her co-defendant, as a witness in her defence, who objected to stating whether any arrangement had been made by him with the prosecuting attorney by which his client was not to be sentenced if found guilty. The court properly declined to compel an answer to the question. The fact was not material at that stage of the case, however proper for the consideration of the court on the motion for a separate trial. The existence of such an arrangement had no tendency to show Mrs. Thompson’s innocence; and could only have been shown to discredit Hale in case he had been examined as a witness.
4. There was sufficient evidence to justify the jury in finding that Hale counselled, hired or otherwise procured the alleged fel
